Let’s break that down. First, Kagan was a vigorous advocate for partial-birth abortion. Her memo to her superiors in the Clinton administration said that it “would be disaster” if the ACOG report came out in its original form, saying that the panel “could identify no circumstances under which [the partial-birth] procedure … would be the only option to save the life or preserve the health of the woman.” Today, Kagan tried to spin that statement, but her attempt was disingenuous. In her memo, she obviously referred to the political consequences if this respected physicians’ group were to acknowledge that partial-birth abortion is never medically necessary–that was the “disaster” that she tried to avert.

Second, in my post yesterday, I misunderstood one fact. I thought that Kagan’s “suggested option,” “An intact D&X [the medical term for the procedure], however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman,” was substituted for the ACOG panel’s original language, “[we] could identify no circumstances under which [the partial-birth] procedure … would be the only option to save the life or preserve the health of the woman.” That was not correct; rather, as Kagan said, both of those sentences were included in the final version of the report. While they certainly point in opposite directions, they are not technically inconsistent.

Third, Kagan’s responses failed to deny the essence of the scandal. On the contrary, she admitted that on behalf of the Clinton administration, she worked behind the scenes to influence the supposedly “scientific” verdict of the ACOG so as to make it more friendly to partial-birth abortion. Her claim that she was merely trying to “clarify” or remind ACOG of what that group really thought is a classic lawyer’s dodge. It stands unrebutted that Kagan drafted pro-partial-birth abortion language and sent it to an ACOG political operative, with the result that Kagan’s language was included in the final version of the panel’s report, even though Kagan is not an obstetrician or gynecologist, and has no expertise in any relevant field. Rather, Kagan was acting as a political representative of the Clinton administration.
This is tremendously important. The ACOG report played a vital role both in public opinion about the partial-birth abortion issue, and in the federal courts’ approach to that issue.

There is little question that Kagan’s edit changed the substance of the ACOG statement, not merely its policy implications. Previously, the draft had read that there were no suchmedical circumstances in which it was the only method to save the health or life of a woman; Kagan inserted language to water down or hedge thatmedical opinion, asserting — notwithstanding what her notes had shown regarding the lack of evidence regarding such circumstances — that the procedure still “may be the best or most appropriate procedure in particular circumstances.” That is not a statement of policy; it is a statement ofmedical opinion.

Any attempt to downplay the significance of these revisions misses the mark. Remember that it was Kagan’s specific language the Supreme Court seized upon in striking down the Nebraska ban. As that opinion concluded, “Casey’s words ‘appropriatemedical judgment’ must embody the judicial need to tolerate responsible differences of medical opinion — differences of a sort that the American Medical Association and American College of Obstetricians and Gynecologists’ statements together indicate are present here.” The Court relied on ACOG’s policy statement (which ACOG expanded on in its amicus brief) to find a division of medical opinion

Hinderaker concludes,

Ms. Kagan’s career appears to be that of a left-wing political operative, not that of a lawyer or legal scholar devoted to an objective application of the laws.